West Virginia state senators Sypolt, Barnes, and Hall have co-sponsored the “Firearms Freedom Act” (SB84) – for the 2011 legislative session. The bill provides that
“A personal firearm, a firearm accessory or ammunition that is manufactured commercially or privately in West Virginia and that remains within the borders of West Virginia is not subject to federal law or federal regulation, including registration, under the authority of Congress to regulate interstate commerce. It is declared by the Legislature that those items have not traveled in interstate commerce.”
While the bill’s title focuses solely federal gun regulations, it has far more to do with the 10th Amendment’s mandate that powers not delegated to the federal government are “reserved to the states, respectively, or to the people.” It states:
(a) The Tenth Amendment to the United States Constitution guarantees to the states and their people all powers not granted to the federal government elsewhere in the Constitution and reserves to the state and people of West Virginia certain powers as they were understood at the time that West Virginia was admitted to statehood in 1863. The guaranty of those powers is a matter of contract between the state and people of West Virginia and the United States as of the time that the compact with the United States was agreed upon and adopted by West Virginia and the United States in 1863.
(b) The Ninth Amendment to the United States Constitution guarantees to the people rights not granted in the Constitution and reserves to the people of West Virginia certain rights as they were understood at the time that West Virginia was admitted to statehood in 1863. The guaranty of those rights is a matter of contract between the state and people of West Virginia and the United States as of the time that the compact with the United States was agreed upon and adopted by West Virginia and the United States in 1863.
(c) The regulation of intrastate commerce is vested in the states under the Ninth and Tenth Amendments to the United States Constitution.
Some supporters of the legislation say that a successful application of such a state-law would set a strong precedent and open the door for states to take their own positions on a wide range of activities that they see as not being authorized to the Federal Government by the Constitution.
Firearms Freedom Acts have already passed in both seven states – Montana, Tennessee, Idaho, Utah, South Dakota, Arizona and Wyoming – and, as of this writing, are already being considered by eight states for 2011.
There’s been no lack of controversy surrounding these laws, either. The Tenth Amendment Center previously reported on the ATF’s position that such laws don’t matter:
The Federal Government, by way of the Bureau of Alcohol, Tobacco and Firearms expressed its own view of the Tenth Amendment this week when it issued an open letter to ‘all Tennessee Federal Firearms Licensees’ in which it denounced the opinion of Beavers and the Tennessee legislature. ATF assistant director Carson W. Carroll wrote that ‘Federal law supersedes the Act’, and thus the ATF considers it meaningless.
Constitutional historian Kevin R.C. Gutzman sees this as something far removed from the founders’ vision of constitutional government:
“Their view is that the states exist for the administrative convenience of the Federal Government, and so of course any conflict between state and federal policy must be resolved in favor of the latter.”
“This is another way of saying that the Tenth Amendment is not binding on the Federal Government. Of course, that amounts to saying that federal officials have decided to ignore the Constitution when it doesn’t suit them.”
Advocates of these efforts say it doesn’t matter if the federal government disagrees, or even threatens states over funding. Gary Marbut, author of the Montana Firearms Freedom Act, and founder of FirearmsFreedomAct.com took this position in a an interview with the Tenth Amendment Center:
“We’re not depending on permission from federal judges to be able to effectuate our state-made guns bills. And, we’re working on other strategies to wrest essential and effective power from the federal government and put it where it belongs.”
The principle behind such legislation is nullification, which has a long history in the American tradition. When a state ‘nullifies’ a federal law, it is proclaiming that the law in question is void and inoperative, or ‘non-effective,’ within the boundaries of that state; or, in other words, not a law as far as the state is concerned.
All across the country, activists and state-legislators are pressing for similar legislation, to nullify specific federal laws within their states.
Seven states have passed Health Care Freedom Acts to block health care mandates from being enforced. Fifteen states – most recently Arizona – are using the principles of the 10th Amendment to actively defy federal laws (and a supreme court ruling, too!) on marijuana. And, massive state resistance to the 2005 Real ID Act has rendered the law virtually null and void.
While some advocates concede that a federal court battle has a slim chance of success, they point to the successful nullification of the Real ID Act as a blueprint to resist various federal laws that they see as outside the scope of the Constitution.
Some say that each successful state-level resistance to federal programs will only embolden others to try the same – resulting in an eventual shift of power from the federal government to the States and the People themselves.
CLICK HERE to view the Tenth Amendment Center’s Firearms Freedom Act Legislative Tracking Page
CLICK HERE to view the Tenth Amendment Center’s printable Firearms Freedom Act Brochure (pdf)